The Joint Committee was convened on a virtual platform to receive two briefings from the Military Ombud and the Defence Force Service Commission. The Ombud briefed the Committee on its progress with the cases it investigated into misconduct by soldiers of the South African National Defence Force (SANDF). The Commission reported on the progress the Department had made with recommendations to improve the conditions of service of soldiers. The Committee also discussed allegations from a whistle blower directed at the current Minister of Defence and the former Defence Secretary.
During the interaction with Military Ombud, Members questioned why there had been such a low number of reported misconduct cases, and the limited remedial actions taken to address them. They enquired about the Collins Khosa issue; any constraints which the Office had faced in its investigation process; whether any high-profile military officers had been involved in misconduct cases; and the challenges faced by the public in accessing the Office. They expressed concern over the Defence Force’s intimidation tactics and its collusion with the police to silence the public in reporting soldiers' misconduct.
The Defence Force Service Commission (DFSC) provided a long list of recommendations it had put to the Department, which were aimed at improving soldiers' conditions of service. Members expressed understanding at the frustration of the Commission, whose recommendations were always completely ignored by the Ministry, and agreed that the Minister must appear before the Committee to account for this situation. They also enquired about the transfer of funds from the Department of Public Works to the Defence Department, and the under-utilisation of military hospitals.
Committee Members were uncertain about the appropriate steps that ought to be taken to proceed on the allegations brought forward by an anonymous whistle blower against the Minister of Defence and the former Defence Secretary. They appreciated the seriousness of the allegations, as they were related to corruption. They asked about the Joint Committee’s power and authority to establish a sub-committee to deal specifically with the matter, its authority to summon and interrogate witnesses, the necessity for a written statement or affidavit from the whistle blower, the need to ask both the Minister and the whistle blower to appear before the Committee, and the applicability of the Protected Disclosures Act. They agreed that it was vital to seek legal advice before the Committee acted so that every step it took would be legally informed.
The Committee received apologies from Ms Nosiviwe Mapisa-Nqakula, Minister of Defence and Military Veterans, and Deputy Minister Thabang Makwetla. The Secretary of Defence was unable to attend due to ill health.
The Chairperson noted the apologies and indicated that the meeting may proceed.
Military Ombud on alleged misconduct by soldiers
Adv Dinkie Dube, Chief Director: Operations, Office of the Military Ombud, briefed the Committee on the Ombud’s investigation into the alleged misconduct by soldiers in the 2020/21 financial year.
She said the Office had received a total number of 56 complaints from members of the public with regard to the misconduct of members of the South African National Defence Force (SANDF). It was the highest number of official conduct complaints that had been received since the establishment of the Office. The Ombud believed that the deployment of soldiers to enforce Covid-19 lockdown rules had contributed to the increase.
Reporting on the status of the official misconduct cases, she said the Ombud had dismissed a high number of cases due to complainants’ lack of information to substantiate cases. Many of the complaints which came from social media platforms during the lockdown were merely one-liners, without any evidence. For instance, the Office had received a complaint from a complainant who said soldiers had assaulted members of the public without substantiating the actual location. This made it very difficult for the Office to finalise those cases. She advised the Committee that the Khosa family issue, which had happened during the lockdown, had been resolved.
Adv Dube outlined the ways in which the public had submitted their complaints, and provided examples of the types of cases which the Office currently was investigating. She said some backlogs were the result of lockdown restrictions, as some investigations could not be completed during that period and had to be done now.
She reminded Members of the lockdown's impact on the Office’s investigations. It had had to delay some of its investigations and was thus unable to meet the 12-month period deadline. She also acknowledged the difficulty experienced by members of public to access certain facilities, such as the prescribed forms for complainants to fill out during lockdown.
The Chairperson asked Members whether they would like to move to the next presentation and engage with the two presentations together, or deal with them separately.
Mr S Marais (DA) said that those two presentations should be dealt with separately due to the very different nature of the two presentations.
Mr D Ryder (DA, Gauteng) concurred with his colleague’s suggestion.
Ms N Nkosi (ANC, Mpumalanga) said that for the sake of saving time, Committee should deal with presentations together and then engage in questions separately.
The Chairperson asked Mr Marais if the Committee could take both briefings together, then deal with questions separately, as Ms Nkosi had suggested.
Mr Marais said that the Chairperson had the authority to make the decision.
The Chairperson suggested allotting 20 minutes for Members to engage with the Ombud Office. If there were still other questions, those responses could be submitted in writing to the Committee.
Mr Marais expressed his concern at the low number of complaints that the Office had received, and the even lower cases that it had investigated. Would this not have damaged the perception of the effectiveness of the Ombud's Office? He asked if the Office had any measures to remedy this situation.
He enquired if there were any cases on the Collins Khosa issue that still remained outstanding. If there were -- since the incident took place almost about a year ago -- had the Ombud kept the Khosa family informed of the progress, as it was imperative?
Mr Marais asked what the constraints were when dealing with complaints that were submitted to the Office. Those constraints could be the complexity of the case, budgetary constraints, etc. He further asked if the Office had received the cooperation of other Departments, governments or countries during its investigation.
He noted that almost all those cases being, or had been, investigated were cases related to ordinary soldiers who had acted against civilians. He asked if there were cases which involved high-profile prominent leaders in the Defence Force.
Mr M Shelembe (DA) asked if ordinary civilians knew where they could report misconduct cases. He commented that ordinary civilians were sometimes afraid of soldiers and intimidated by them against reporting such cases. He asked why members of the SANDF would do that to the very people that they should serve. Sometimes even members of the police force colluded with the SANDF and intimidated civilians who reported soldiers’ misconduct. He asked how quickly the public could communicate with the Ombud if police stations could not be used.
Military Ombud's response
Lt Gen Themba Matanzima, Military Ombudsman, sought more clarity on Mr Marais’s question on the low number of complaints. He asked if Mr Marais thought that 56 was too low a number.
Mr Marais responded that most of the reported cases had been dismissed. It might create a challenge with the perception amongst the public, as most cases were being dismissed on technical grounds.
Lt Gen Matanzima explained that many of the complaints that had been dismissed were not the result of not enough work being done, but rather on the grounds that the facts had not been substantiated. The challenge during the lockdown period had been that many of the complaints had been lodged on social media platforms. The law itself was very prescriptive in the procedure of lodging a complaint, which had to be submitted in writing to the office. The purpose of having the complaint form was for the Office to get sufficient information prior to its investigation. Although the Office had made efforts to get complainants to complete the form, many of its attempts were fruitless, as complainants simply did not get back. In some instances, complainants’ information in the complaint form was of such importance that it was required before the Office could proceed with its investigations.
Adv Dube confirmed that the large number of cases that were dismissed were on the basis of the complaints lacking details which were required to enable the Office to commence investigations.
Lt Gen Matanzima said that the Office currently did not face budgetary constraints. The only challenge had been that the Ombud’s members could not travel to conduct local inspections during the lockdown period, which may have delayed certain investigations. The Office strove to be impartial and did investigations with no fear and no favour to any individual.
He confirmed that the Office had only received cases regarding the misconduct of ordinary soldiers and had not received any complaint against a senior member of the Defence Force. He assumed that the reason could be that it was the ordinary soldiers who were interacting with members of the public on a daily basis, and it was during such interactions that issues had arisen.
Adv Dube confirmed that the Khosa matter had been finalised, and the report on the case had already been submitted to the Department. The Minister of Defence assigned the Ombud Office to conduct the investigation according to s6 (11) of the Military Ombud Act. The report of the investigation had been submitted to the Minister for implementation. There was no outstanding issue related to the Khosa case.
Lt Gen Matanzima responded to Mr Shelembe’s question. He did not believe that there was anything wrong in the public taking picture of soldiers who were involved in wrongdoing -- it would help a lot in an investigation if such pictures could be taken. However, he also needed to point out that soldiers were averse to having pictures taken in the initial stage of deployment, because they understood that they would be in trouble if pictures were taken. This would explain why they would intimidate members of the public in front of the South African Police Service (SAPS). From the Ombud's view, there was nothing wrong legally to take pictures of the wrongdoing of soldiers.
He responded to the question on how quickly members of the public could contact the Office in instances where they were worried about reporting soldiers’ misconduct to the SAPS. He said that before the lockdown, the Office had been communicating extensively on how it could be reached. The Office was also giving out its contact details on social media. The speed within which members of the public could reach the Office depended on the public themselves.
Mr Ryder commented on the narrow prescription of the process to lodge a formal complaint against a soldier as defined by the legislation. He believed that it made it more difficult for the public report misconduct. He asked whether there was need to review the regulations on the reporting process, and asked the Ombudsman to guide Members through the draconian, limiting processes.
Mr W Mafanya (EFF) remarked that Members could still conduct their oversight business during the hardest lockdown level 5. He found it unconvincing that the Office could not conduct its investigations. He believed that the delay was an excuse and was unjustified, as Members of Parliament and government had special permits. He highlighted the egregious nature of some of the misconduct, such as sexual harassment, as revealed by the soldiers themselves. He also felt that there had been a lack of a campaign on the Ombud’s part to let more people know where their office was. He commented that most of his constituents did not know anything about the Office and its functions. He emphasised the importance of campaign awareness.
He concurred with Mr Ryder that there needed to be a revision of the complaints procedure.
The Chairperson asked why the complaint forms could not be kept at police stations. He asked whether the police could not take charge of the case, and go to the areas where the incidents took place.
Co-Chairperson Xaba enquired about the turnaround time from the time a complaint was lodged. He emphasised the importance that complaints and investigations must be handled and dealt with within a specific period of time. For instance, in the judiciary, judges must deliver their verdicts within three months. If the verdict was not delivered within three months, the judge would be called to account and had to provide justification as to why there had been a delay with the verdict. It was a monitoring measure.
Lt Gen Matanzima acknowledged that the Office had noted the difficulties surrounding the restrictive measures in terms of the Act. It had been given authority by the Minister to engage in a review of the Act. During the process, it would be looking at all areas of its work that were hindering the public’s access to the Office. For instance, there was a loophole around investigations on its own initiative, as it often had to wait for a complainant to formally lodge a complaint before it was allowed to conduct investigations.
He agreed that the Ombud's employees were indeed essential workers and could move around. However, he reminded Members of the bigger picture -- that there had been inter-provincial travel ban that had prohibited his workers from moving to other provinces to do local inspections.
Regarding creating awareness of the Office among the public, he said that extensive work had been done in reaching out to other provinces. It had emphasised the awareness campaign and was continuously campaigning to broaden its awareness. In the beginning of the lockdown stage, the Office had adopted a strategy that focused on areas where the SANDF had been deployed. The Office was also partnering with the South African Local Government Association (SALGA) to enhance its outreach programmes.
He referred to the distribution of the complaint forms, and said that the Office needed to be careful in its distribution of the forms because complainants usually were members of the public, and former and current members of the SANDF.
Lt Gen Matanzima reminded Members that the Office had a turnaround time of up to three years to deal with a complaint. After his appointment, he had reached an agreement with the Chief of the Defence Force, where the Ombud's staff usually experienced problems. For now, simple complaints usually took up to six months to complete, while complex complaints may take up to one year. The Office aspired to reduce the turnaround time further.
DFSC on recommendations to improve the conditions of service of soldiers
Mr Ian Robertson, Commissioner: Defence Force Service Commission (DFSC), provided feedback on the recommendations tabled from 2013. The 169 recommendations could be broken down into 22 categories. The Commission had not received an update on any implementation of the recommendations tabled before the Minister. The categories included accommodation/infrastructure, allowances and occupational specific dispensation, border protection ‘Operation Corona’, career development, command and control, Department of Defence policies and instructions, educational training and development, fraud and corruption, external and internal deployments, funding and budget, human resources (HR), medical support services, procurement, reserve force, security at bases and units, transport, uniforms, buildings, and a military skills development programme. Mr Robertson reiterated that the Commission had not received any update on the implementation of its recommendations.
(See presentation for details)
Mr Ryder said he had picked up an impression from the last time the DFSC appeared before the Committee that the Committee’s recommendations were continuously being fobbed off by the Department. He believed that the Minister treated the Commission more like an irritation of the Department, rather than an entity that aimed to constructively assist it to perform better. He therefore wanted to know if the situation had been improved and whether the Commission had been taken seriously by the Department.
He asked about the transfer of budget from the Department of Public Works (DPW) to the Department of Defence (DOD). Since the transfer still had not taken place, he wanted to know how long the stand-off had been, and what the explanation was from the DPW. For instance, he knew an area that was just outside of Tshwane, but was not under the jurisdiction of the municipality, which relied completely on DPW funds for road maintenance and electricity. He therefore believed that it was imperative that the funds should be transferred to the Defence Force as soon as possible.
Mr Ryder remarked that the presentation was problematic, as the Minister was not present and therefore could not directly respond to the issue on the Commission’s recommendations not being implemented.
Mr Marais agreed with his colleague’s view that the Commission had not been taken seriously by the Department. He specifically enquired about the Department’s implementation of the Commission’s recommendations on the three military hospitals. He was under the impression that the military hospitals were under-utilised. He specifically made reference to the two intensive care units (ICUs) in two of the military hospitals. During the Committee’s oversight visit, he was impressed that those two ICU units were probably among the best in the country, but they were not populated. Given that South Africa’s medical health services constituted one of biggest expense items in the budget, he found it unacceptable that there was little productivity. He also commented that another beautiful military hospital in Cape Town was also totally under-utilised. Based on the under-utilisation of military hospitals, he asked the Commission what it could do if it did not receive any update on the implementation of its recommendations. He suggested that if the DOD could not manage, would it not have made better sense to place those hospitals under the management of the Department of Health?
Dr B Holomisa (UDM) recalled his memory of the early days of the Commission, and said that the then Minister, Ms Lindiwe Sisulu, had fought hard to keep the Commission independent, and not just as an advisory body to the Minister. He also noted the Minister’s promise in her budget speech that she was going to fight for its independence. It was thus ironic that the Minister had provided no Cabinet memo to the Committee when it had asked her to provide such documents. He expressed deep concern that the country was experiencing the same situation as it had in 2010, when soldiers had resorted to street protests if there was no political will to resolve the matter.
He suggested the Joint Committee should approach the President to ask him, as Commander in Chief, what he could do to address the issue of the Commission’s recommendations not being implemented. He believed that the Committee should be firm on the issue, as troops on the ground were complaining because of the same complaints that had not been attended to for many years.
Mr K Motsamai (EFF, Gauteng) questioned whether approaching the President would be productive, as the President would be most likely to ask the Committee to approach the Minister first. He emphasised the importance that the Ministry -- either the Minister or the Deputy Minister -- had to be present at the Committee to account for the matter.
The Committee agreed to schedule a meeting with the Minister.
Ms Sebina Hlapolosa, Deputy Chairperson: DFSC, responded to the Committee that the Commission’s function was to make recommendations to the Department, but it did not have the power to impose its recommendations or oversee their implementation. Due to the challenge related to finance, which affected the Defence Force's programmes generally, the Commission believed that the areas in which it had made recommendations were worse off than when it had first made them. The financial constraints had the implication that there would be no funding to implement any of the Commission’s recommendations.
She supported the view that the Defence Review should be taking place in order to change the current situation.
Dr Ziyaad Essop Commissioner, DFSC, responded to the questions about the military hospitals. He said that the issues identified among the three hospitals were similar, but the levels of severity varied. The Commission was seeing the outcome of system problems. He also highlighted the issue of human resources, where hospitals were struggling to get the right doctors and nurses. The Department of Defence had to consider whether or not it would employ medical professionals in a civilian or a uniform capacity. There was also the issue of career development once the new recruits were working in those hospitals.
Dr Essop also commented on the procurement issue. For instance, those responsible for the procurement of medical equipment in Pretoria may have no understanding of what was required on the ground, and hence procured cheaper medical equipment which could not be serviced in South Africa. He said there was equipment in the X-ray department which had not been serviced for two years. The ICU was also facing its own challenge of a lack of capacity, so it could not provide some of the functions.
Mr M Motsepe, Head of the Defence Secretariat, responded that he did not have information on the transfer of funds from the Department of Public Works to the Department of Defence. However, the process had started between the two Departments. More information would be shared at the executive level.
Mr Robertson observed that many of the issues raised by Members were more commentary than questions. He did believe that the Commission could make a difference. Many issues which the Commission had identified, such as accommodation, infrastructure facilities, commander control, career development, education and training, human resources, etc, could be resolved if Members could go to the military units and bases. He emphasised the critical role of visiting those bases to understand the problems. During the 2020/21 financial year, there had been restrictions around COVID-19 which had deterred physical visits to those bases. Some of the issues did not need the Chief of the SANDF, or human resources or services personnel to go and resolve them. Some of the management issues could be attended to simply by having officials visiting the bases. He emphasised the important role of visiting those bases, and guaranteed that the Commission would continue to work and push to see their recommendations implemented.
The Chairperson remarked that the Committee’s oversight visit had revealed situations which were no different from the ones which the Commission had provided. It was saddening to see that, and highlighted the need for the DOD to provide services to ensure that soldiers lived in better conditions.
The Commission was released from the Committee.
The Chairperson said that there might be more questions for the Commission, and he would invite both the Commission and the Minister to appear before the Committee.
Follow-up on issues related to letters from Gen Holomisa
The Chairperson said Committee had received letters from Gen Bantu Holomisa on a number of allegations involving the Minister and the Secretary of Defence. The allegations reported by Dr Holomisa had come from an anonymous whistle blower. The Committee had received a response from Ms Nosiviwe Mapisa-Nqakula, the Minister of Defence, but a response from Dr Sam Gulube, the Defence Secretary, remained outstanding. Since neither of the parties involved was present on the virtual platform, the Chairperson asked Members to indicate the best course of action to proceed with the matter.
Dr Holomisa believed that the Committee should continue with the discussion on the matter because the Minister had responded to the allegations. Although he had not seen a response from the Defence Secretary, he noted that the Minister had denied all the allegations of the whistle blowers. He believed that now it would be up to the Joint Committee to make a decision on which institution should have the authority to conduct investigations and verify the allegations. In the Minister’s response, she had admitted to having had communications between herself and the service provider on WhatsApp. Therefore, his view was that the Minister would have to explain the context of the WhatsApp messages.
Mr Marais understood and fully appreciated the severity of the allegations which had been levelled at the involved parties, but reminded Members of the importance of seeking the Committee’s legal advice before rushing into any decisions. He also understood that usually people being accused of wrongdoings would plead not guilty. He submitted that the Committee should seek legal advice from Parliament’s legal advisor, Ms Sueanne Issac. The Committee might have to review all the allegations or specific allegations and have to make a decision on whether it would need to summon witnesses or divulge the witness’s identity at some stage.
Mr T Mmutle (ANC) sought clarity from the legal advisor on whether the Committee could assume the responsibility of a court of law to interrogate and subpoena witnesses. He wanted Ms Isaac to provide some clarity on what constitutional powers the Committee and Members had to conduct such an investigation.
Mr Motsamai appreciated the seriousness of the allegation, as it was related to corruption. He suggested that both the Minister and the whistle blower should appear before the Committee in order for Members to get a better understanding of the case.
The Committee Secretary informed the Committee that to date he had not received a response from the Secretary of Defence.
The Chairperson proposed the Committee should get a statement from the whistle blower, without divulging the whistle blower’s identity, and check with the legal advisor whether or not an anonymous whistle blower could make a statement and still remain anonymous by law.
Legal advisor's response
Ms Isaac responded that anonymous whistle blowers could make a statement and remain anonymous. However, the legal team would have to make an assessment on the whistle blower to determine under which category the whistle blower fell, and whether or not the Protected Disclosures Act applied to them. However, there was a clause that could provide the whistle blower’s identity.
Mr Isaac said that in the response which the Committee had received, the Minister had provided an extensive response on the travelling, and also provided corresponding supporting documents to substantiate her response. The Committee could assess the evidence that had been presented before them and determine whether that evidence would satisfy them.
Ms Isaac commented on the payment part of the Minister’s response. She noted that the Minister had been given two opportunities to respond to the matter, and had denied those allegations on both occasions. What was absent was that the Minister did not provide evidence, such as dates, to substantiate her denials of the charges. She advised the Committee that it had the option to ask the Minister to re-submit her response and provide the Committee with more details and specifics.
The Chairperson asked if it was possible for the whistle blower to write a statement and specifically address the Committee.
Mr Marais suggested Dr Holomisa should have a conversation with Ms Isaac in order to determine which category the whistle blower would fall under before the Committee took steps.
Dr Holomisa sought clarity from Ms Isaac on the difference between a statement and an affidavit.
He also wanted to know at what stage a Parliamentary Committee could subpoena people from a constitutional point of view.
Mr Marais asked Members to consider the idea of having a sub-committee which could also be equipped with its legal services, in order to delve more deeply into this matter.
The Chairperson remarked that establishing a sub-committee would be the Committee’s decision to make. Hence, there would be no need to involve legal service.
Mr Motsamai said that the whistle blower would need to write something addressed directly to the Committee so that it could verify all the information in an open and unbiased way. So far, the information that the Committee had obtained on the matter had all come from Dr Holomisa.
Ms M Modise (ANC) asked whether a statement or an affidavit would be legally sufficient for the Committee to begin its process of summoning witnesses.
Dr Holomisa asked the legal adviser to guide Members on the way forward.
Ms Isaac responded that an affidavit was more of a formal statement sworn under oath. An affidavit carried more weight. She reiterated the Protected Disclosures Act and its objective to protect a whistle blower’s identity. She said the Committee could proceed to summon people, regardless of the whistle blower making a statement or not.
Mr Siviwe Njikela, Senior Parliamentary Legal Advisor, added to the response. He said that the legal advice which Members sought from the legal team could be summarised into two areas. Firstly, he could confirm that the matter fells within the mandate of the Joint Committee to investigate and enquire as far as it was a matter related to the Department of Defence. Secondly, the Committee must give the Minister an opportunity to respond to the allegations contained in the letter.
Since the Minister had now responded on two occasions, he advised that Members needed to decide whether they were satisfied with the Minister’s response. The outcome of the determination would result in the Committee either not being satisfied with the Minister’s answer, and then inviting the Minister to appear before the Committee to respond to the specific questions that the Committee may have and felt had not been sufficiently responded to in her response; or the Committee could resolve that it was satisfied with the Minister’s response. Therefore, the key question boiled down to whether or not the Committee was satisfied with the Minister’s response.
Ms A Beukes (ANC) reminded the legal team of the question on the establishment of a smaller sub-committee.
The Chairperson enquired about the composition of a smaller sub-committee.
Mr Marais offered his input. He concurred with his colleagues on the seriousness of the allegations, and agreed that the Joint Committee must pursue this matter further. He suggested inviting both the Minister and the former Defence Secretary to appear before the Committee, for them to be asked clarifying questions. It was important for Dr Holomisa and Parliament’s legal services to have a discussion and determine the category of the whistle blower, and to discuss the potential for making a statement or an affidavit. If the matter involved something sensitive, then the Committee could establish a small committee.
Mr Motsamai agreed with other Members on the suggestion to establish a sub-committee to deal specifically with this matter. He further suggested that the whistleblower could come and appear before the sub-committee. His concern was that the whistle blower may not appear.
Ms Isaac responded to Members that her office needed some time to consider the Committee’s power and authority to establish a smaller sub-committee, from a constitutional point of view. Her view was that this sub-committee would be more likely to be a task team with specific rules.
Ms Modise proposed that the Committee should resolve that the written responses which the Committee received from the Minister should be considered as insufficient. Therefore, because Members were not satisfied with the Minister’s written responses, the Committee should have a discussion with the Minister to interrogate her response in order to get to the bottom of the case.
Mr Mmutle proposed a way forward. He believed that the Committee needed to first solicit the response from Dr Sam Gulube. The Chairperson and co-chair could then facilitate a closed session to deal with this item, which should be scheduled outside of the programmed meetings of the Joint Committee. He believed this meeting would provide more clarity on how the Committee could move forward in dealing with the matter.
Ms Nkosi supported the proposal made by Mr Mmutle, as did Mr Marais. However, Mr Marais added that he would support Mr Mmutle’s proposal as long as legal services still applied their minds to the matter given. He emphasised the importance that the Committee must interact with the whistle blower in the correct way.
The Chairperson agreed with Members’ inputs, and remarked that the Committee needed to first engage with the Minister so that Members could ask clarifying questions to know more about the allegations. The Committee would also need information from the whistle blower.
The meeting was adjourned.
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